Scott v. Kiker

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297 S.E.2d 142 (1982)

Billy Wyatt SCOTT v. William L. KIKER, III.

No. 8112SC1362.

Court of Appeals of North Carolina.

November 16, 1982.

*145 Reid, Lewis & Deese by Marland C. Reid and Renny W. Deese, Fayetteville, for plaintiff-appellee.

Jack E. Carter, Fayetteville, for defendant-appellant.

VAUGHN, Judge.

Alienation of affections and criminal conversation are tort actions. Elements of an action for alienation of affections are: the marriage, the loss of affection, the wrongful and malicious conduct of defendant, and a causal connection between such loss and conduct. Criminal conversation is adultery. The cause of action is based on the violation of the fundamental right to exclusive sexual intercourse between spouses. Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104 (1969).

Defendant's first argument is that the trial court erred by allowing plaintiff to testify about his ex-wife's adultery, in violation of G.S. 8-56. We do not agree. According to G.S. 8-56, spouses are competent and compellable to testify as witnesses in civil actions, except "[n]othing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or... criminal conversation...." (Emphasis added). Since plaintiff's ex-wife was not a party to the action, nothing prohibited plaintiff from testifying about her adultery. In Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913), the Supreme Court held that a husband was competent to testify as a witness in his own behalf to the adultery of his wife in an action for criminal conversation and alienation of affections. Accord, Golding v. Taylor, 23 N.C.App. 171, 208 S.E.2d 422, cert. denied, 286 N.C. 334, 210 S.E.2d 57 (1974).

Defendant also contends that the trial court erred in allowing plaintiff to testify about a private conversation with his ex-wife. A spouse shall not "be compellable to disclose any confidential communication made by one to the other during their marriage." G.S. 8-56. The nonwitness spouse holds the privilege and may prevent the witness spouse from testifying about confidential communications. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967). Defendant, however, waived his privilege because he failed to object to the testimony, and he cannot raise it on appeal. Rule 10(b)(1), Rules of Appellate Procedure.

Defendant's second argument is that the trial court erred in failing to instruct the jury that they must find actual damages before awarding punitive damages. Since the causes of action of alienation of affections and criminal conversation were so intertwined, the court properly submitted only one issue of compensatory damages and one issue of punitive damages to the jury. Sebastian v. Kluttz, supra. Punitive damages may not be awarded unless compensatory damages are awarded. Phillips v. Universal Underwriters Ins. Co., 43 N.C.App. 56, 257 S.E.2d 671 (1979). Since the jury found both actual and punitive damages there was no error, even though the trial judge failed to instruct the jury that they must find actual damages before awarding punitive damages.

*146 Defendant's third argument is that the trial court erred by not allowing his motion to set aside the award of damages because plaintiff failed to show that he suffered any pecuniary loss since his income increased after his divorce. Defendant is mistaken in his belief that compensatory damages must be based on pecuniary loss. In determining compensatory damages, the jury may also consider the loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of defendant have brought. See Powell v. Strickland, supra; Sebastian v. Kluttz, supra. Merely because plaintiff had a better paying job after the divorce does not necessarily diminish his suffering from losing his wife.

Defendant argues that the trial judge inferred to the jury that if they found the requisite malice for alienation of affections, they must find punitive damages. This is not true. To find punitive damages, plaintiff must show circumstances of aggravation in addition to the malice implied by law which was necessary to prove compensatory damages. Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980). The judge instructed the jury that to find alienation of affections, they must find either "adultery or that defendant acted maliciously. Malice is a disposition to do wrong without legal excuse." Punitive damages, the trial judge correctly instructed, "are not allowed as a matter of course, but they may be awarded only when there are some features of aggravation, as when the act is done wilfully and evidences a reckless and wanton disregard of plaintiff's rights."

Defendant contends that since plaintiff admitted that he was unfaithful to his wife, he should not be entitled to damages for criminal conversation because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. We do not agree. The impairment of plaintiff's relationship with his wife that was due to his infidelity was merely a factor to reduce his damages. The trial judge correctly instructed the jury: "If the marital relationship between... [plaintiff and his wife] was already strained or impaired, then the amount of damages should be reduced accordingly." Infidelity, per se, does not prevent plaintiff from collecting damages for defendant's criminal conversation. For example, in Sebastian v. Kluttz, supra, the evidence showed that plaintiff's husband was a heavy drinker and had been unfaithful. The Court held that the husband's past activity may have been a contributing factor to their separation, but defendant's conduct was the controlling and effective cause.

Defendant's fourth argument is that the trial judge erred in failing to grant defendant's motion for nonsuit. G.S. 1-183 [repealed in 1967, effective 1 January 1970], provided for the motion for judgment as of nonsuit at the close of plaintiff's evidence. Today, we use a motion for directed verdict pursuant to G.S. 1A-1, Rule 50(a). When a motion for directed verdict is made at the close of plaintiff's evidence, the trial judge must determine whether the evidence, taken in the light most favorable to plaintiff, and giving plaintiff the benefit of every reasonable inference, was sufficient to withstand defendant's motion for directed verdict. Sawyer v. Shackleford, 8 N.C.App. 631, 175 S.E.2d 305 (1970).

To sustain a cause of action for alienation of affections, plaintiff must show that: (1) he and his wife were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affection. Heist v. Heist, supra.

Plaintiff introduced ample evidence of the love and affection in his marriage which continued until defendant interfered by allowing plaintiff's wife to visit him every night, knowing that it would affect plaintiff's marriage. Defendant contends that plaintiff failed to prove that defendant attempted to lure plaintiff's wife. Luring is not required. Defendant's *147 wrongful conduct need only be the controlling or effective cause of the alienation. Sebastian v. Kluttz, supra. Direct proof is not required to show adultery in a criminal conversation action. Powell v. Strickland, supra. Clearly, there was sufficient circumstantial evidence of adultery to withstand a motion for directed verdict.

Defendant's fifth argument is that the trial court erred in admitting plaintiff's officer efficiency reports because they are hearsay. These documents, however, were offered to corroborate plaintiff's testimony, not as substantive evidence. Defendant should have requested a limiting instruction. Absent such request, failure to give a limiting instruction is not error. State v. Sauls, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977). See 1 Brandis on North Carolina Evidence ยง 52 (1982).

Defendant's next two arguments are based on his contention that the alienation of affections and criminal conversation causes of action should be abolished. These arguments were not addressed to the trial court and are not reviewable on appeal. Rule 10(a), Rules of Appellate Procedure.

Defendant's last argument is that the court erred in failing to instruct the jury that consent of plaintiff's wife is a defense to criminal conversation and alienation of affections. This argument is wholly without merit. "In neither case [alienation of affections nor criminal conversation] is the consent of the wife a defense to a recovery by the plaintiff of the damages which he has sustained as the result of the wrongful conduct of the defendant." Chestnut v. Sutton, 207 N.C. 256, 257, 176 S.E. 743, 743 (1934).

We have carefully reviewed defendant's assignments of error and find no error.

No error.

WEBB and WELLS, JJ., concur.

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